Georgia University Copyright Spat Revived

(CN) – Publishers will get another chance to show that Georgia universities give professors too much use of copyrighted materials, the 11th Circuit ruled. Cambridge University Press, Oxford University Press and Sage Publications Inc. sued Georgia State University president Mark Becker, president emeritus Carl Patton, and various other officers with the university system and its board of regents. Complaining that Georgia State lets its professors make digital copies of book excerpts available to students online without paying the publishers, the publishers alleged that their advanced scholarly works rather than entry-level textbooks were the subject of 74 individual infringement acts during 2009. A federal judge found that the policy caused just five acts of infringement, however. In addition to finding that the publishers did not make a strong enough case on 26 instances, the court said that the fair-use defense applied in the other 43 cases. The court also awarded the Georgia university system more than $3 million in attorneys’ fees and costs because it had prevailed on all but five counts. A three-judge panel of the 11th Circuit reversed Friday, finding that that the District Court must revisit the case because it erred on the fair-use issue. “Some unpaid use of copyrighted materials must be allowed in order to prevent copyright from functioning as a straitjacket that stifles the very creative activity is seeks to foster,” Judge Gerald Bard Tjoflat wrote for the court in Atlanta. “If we allowed too much unpaid copying, however, we risk extinguishing the economic incentive to create that copyright is intended to provide.” The fair-use doctrine allows a defendant to state that “its unpaid use of copyrighted material would be equitable and consonant with the purposes of copyright,” according to the ruling. It was erroneous for the District Court, however, to equally weight the four fair-use factors in each case and characterize an act as fair use if three or four of the factors applied. In the event of a 2-2 tie, the District Court performed additional analysis. Tjoflat emphasized that the “defendants ‘exploited’ plaintiffs’ copyrighted material for use in university courses without ‘paying the customary price’ – a licensing fee.” “Defendants profited from the use of excerpts of plaintiffs’ works – however indirectly – because GSU collects money from students in the form of tuition and fees and reduces its costs by avoiding the fees it might have otherwise paid for excerpts,” the judge added. In a special concurring opinion, U.S. District Judge C. Robert Vinson, sitting by designation from Florida, said “the District Court’s error was broader and more serious than the majority’s analysis concludes.” Vinson said the Georgia university system had the burden to show that its electronic use of the plaintiffs’ work was fair “when the exact same use in paper form is not.” “In my view, they have not even come close to doing so,” the judge added.